PEOPLE OF THE STATE OF MICHIGAN v. CAMPBELL

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PEOPLE OF THE STATE OF
MICHIGAN

v.

CAMPBELL

July 2, 1999

No. 212907

LC No. 98-034557 AR

Marquette Circuit Court

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v.

LAWRENCE JAMES CAMPBELL,

Defendant-Appellee.

Before: Whitbeck, P.J., and Markman and
O’Connell, JJ.

MARKMAN, J.

The prosecutor appeals by leave granted an
order by which the circuit court vacated a district court order
denying defendant’s motion to suppress blood alcohol test
results and remanded defendant’s case to the district court
for an evidentiary hearing on whether the test results were
reflective of defendant’s blood alcohol level at the time of
his offense. The circuit court concluded that the prosecutor had
failed to provide evidence to show that the results of the blood
test were probative of defendant’s blood alcohol level at
the time of the offense given the length of the delay between the
offense and the test. We reverse the circuit court and reinstate
the district court’s order denying defendant’s motion
to suppress.

On August 4, 1997, defendant was in a one-car
automobile accident in Powell Township, Marquette County. The
Regional Dispatch office received a call regarding the accident
at 10:54 p.m., and Michigan State Police Trooper Dale Hillier was
dispatched to the scene at 11:14 p.m. According to Officer
Hillier, he arrived at the accident scene between 11:45 p.m. and
midnight. By the time he arrived, defendant had been taken to a
doctor’s office at the nearby Huron Mountain Club.
Apparently, another police officer arrived at the accident scene
prior to Officer Hillier, retrieved defendant from the Club
doctor’s office, and brought him to the scene of the
accident at approximately 12:20 a.m. Officer Hillier testified
that defendant denied having ingested any alcohol after the
accident. Defendant was arrested at 12:42 a.m. for operating a
vehicle under the influence of intoxicating liquor (OUIL). He was
taken by patrol car to the hospital, approximately thirty miles
from the accident, to have his blood drawn. Defendant had two
vials of blood drawn by hospital personnel at 1:18 a.m. Test
results showed a blood alcohol content of .27.[1]Defendant was
later charged with OUIL. MCL 257.625(1); MSA 9.2325.

Defendant filed a motion to suppress the
results of the blood test. The district court denied the motion,
stating:

Well, I think that some of the time was
lost here because of the distances involved, and the
officers, from the time that they apparently got him and
placed him under arrest, it took about thirty-six minutes
for them to get the test taken at the hospital. I feel
that they have acted just as expeditiously as they could,
and I am going to deny your motion to suppress.

Defendant then filed a delayed application for
leave to appeal in the circuit court. Leave was granted, and in
an opinion issued on June 18, 1998, the circuit court vacated the
district court’s order denying defendant’s motion to
suppress, and remanded for an evidentiary hearing on the issue of
the reasonableness of the time lapse between defendant’s
accident and the blood draw. The circuit court concluded that the
time lapse was too long for the test results to be considered the
equivalent of defendant’s blood alcohol content at the time
of the accident, at least without expert testimony supporting
such a conclusion.

The decision whether to admit evidence is
within the sound discretion of the court. People v Hanna,
223 Mich App 466, 476; 567 NW2d 12 (1997). Similarly, whether the
delay was reasonable is a determination left to the court. People
v Jacobsen, 205 Mich App 302, 306-07; 517 NW2d 323 (1994),
rev’d on other grounds 448 Mich 639 (1995); MRE 104(a). At
the time that the circuit court heard this case, it was generally
accepted that in order for the results of chemical tests of blood
alcohol to be admitted into evidence, a prosecutor must meet four
foundational requirements, as follows:

(1) the operator administering the test
is qualified; (2) the proper method or procedure was
followed in administering the test; (3) the test was
performed within a reasonable time after the arrest; and
(4) the testing device was reliable. [Jacobsen, supra at
305, citing People v Kozar, 54 Mich App 503, 509,
n 2; 221 NW2d 170 (1974).]

The only requirement relevant in this case was
whether the test was performed within a reasonable time. The
circuit court in this case required that the prosecutor put forth
evidence prior to admission of the test showing that
defendant’s blood alcohol level at the time of the test was
to be considered the equivalent of his blood alcohol level at the
time of the accident in order to show that the test was performed
within a reasonable time. To determine the proper impact, if any,
that a delay in testing a defendant’s blood alcohol level
should have on a drinking and driving case, we look to the law at
issue and the policy surrounding Michigan’s drinking and
driving laws.

We first address the ‘implied consent
statute,’ MCL 257.625a; MSA 9.2325(1), which governs the
admissibility of chemical tests in drinking and driving cases.
The primary goal of judicial interpretation of statutes is to
ascertain and give effect to the intent and purpose of the
Legislature. People v Stanaway, 446 Mich 643, 658; 521
NW2d 557 (1995); People v Gilbert, 414 Mich 191, 200; 324
NW2d 834 (1982). If statutory language is clear, it must be
enforced as it is written, but if it is susceptible to more than
one interpretation, we must determine what the Legislature meant
by the language. People v Denio, 454 Mich 691, 699; 564
NW2d 13 (1997). "When the meaning of statutory language is
questioned, a reasonable construction must be given by looking to
the purpose served thereby, and the meaning must be derived from
the statutory context within which the language is used." People
v Parsons, 142 Mich App 751, 756; 371 NW2d 440 (1985)
(citations omitted). "Indeed, ‘provisions of a statute
must be construed in light of the other provisions of the
statute, in such a manner as to carry out the apparent purpose of
the Legislature.’ Workman v DAIIE, 404 Mich 477, 507;
274 NW2d 373 (1979)." Dagenhardt v Special Machine &
Engineering, Inc, 418 Mich 520, 529; 345 NW2d 164 (1984).

The ‘implied consent statute,’ MCL
257.625a; MSA 9.2325(1), in effect at the time of
defendant’s accident provides, in pertinent part:

The amount of alcohol . . . in a
driver’s blood or urine or the amount of alcohol in
a person’s breath at the time alleged as shown by
chemical analysis of the person’s blood, urine, or
breath is admissible into evidence in any civil or
criminal proceeding. [MCL 257.625a(6)(a); MSA
9.2325(1)(6)(a).]

* * *

The results of the test are admissible
in a judicial proceeding as provided under this act and
will be considered with other competent evidence in
determining the defendant’s innocence or guilt. [MCL
257.625a(6)(b)(ii); MSA 9.2325(1)(6)(b)(ii).]

* * *

Except in a prosecution relating solely
to a violation of section 625(1)(b) or (6), the amount of
alcohol in the driver’s blood, breath, or urine at
the time alleged as shown by chemical analysis of the
person’s blood, breath, or urine gives rise to the
following presumptions:

* * *

If there were at the time 0.10 grams or
more of alcohol per 100 milliliters of the
defendant’s blood, . . . it is presumed that the
defendant was under the influence of intoxicating liquor.
[MCL 257.625a(9)(c); MSA 9.2325(1)(9)(c).]

The statute does not expressly state what type
of test is required as a prerequisite to the admission of
chemical tests. Indeed, the statute itself does not require any
prerequisite to admission. Instead, the Legislature simply states
that the amount of alcohol in a driver’s body "at
the time alleged as shown by chemical analysis of the
person’s blood, urine, or breath is admissible into
evidence." MCL 257.625a(6)(a); MSA 9.2325(1)(6)(a) (emphasis
added). The Legislature did not include a limit on the amount of
time that the chemical analysis would continue to show the amount
of alcohol "at the time alleged." Id. Clearly,
"at the time alleged" refers to the time of the
offense. See State v Taylor, 132 NH 314, 318; 566 A2d 172
(1989). Pursuant to the plain language of the statute, a chemical
test, regardless of the amount of time before the test is
actually performed, is assumed to be a reasonable approximation
of a person’s blood alcohol level at the time of the
offense. The Legislature has determined that a chemical test is
generally a sufficiently close indicator of a person’s blood
alcohol content at the time of the offense that it must be
allowed into evidence.

The statute also states that "if there
were at the time 0.10 grams or more of alcohol per 100
milliliters of the defendant’s blood, . . . it is presumed
that the defendant was under the influence of intoxicating
liquor." MCL 257.625a(9)(c); MSA 9.2325(1)(9)(c) (emphasis
added). Notably, the Legislature stated in this subsection that
the presumption existed if there were 0.10 grams or more "at
the time," and not "at the time alleged." The
Legislature could have used such "alleged" language had
it intended to require a prosecutor to extrapolate the blood
alcohol content back to the time of the offense, and indeed the
Legislature proved itself capable of using this language in other
sections of the statute. Since the plain language evidences such
a distinction between the words used in these sections, we are
not prepared to undermine such distinction by reading the same
meaning into each phrase.[2] Instead, the phrase, "at the time" must be
read not as requiring proof of a certain blood alcohol level at
the time of the offense, but at the time of the test itself.
Thus, the blood alcohol test results are statutorily deemed to
relate back to the time of the alleged offense. In addition, the
plain language of § 625a(9), stating that certain blood
alcohol levels will result in "presumptions" that a
"defendant’s ability to operate a vehicle was
impaired," MCL 257.625a(9)(b); MSA 9.2325(1)(9)(b), or that
a "defendant was under the influence of intoxicating
liquor," MCL 257.625a(9)(c); MSA 9.2325(1)(9)(c), is
contrary to the circuit court’sfoundational
requirement that additional evidence must be put forth showing
the reliability of delayed tests. While the statutory language
would allow the blood alcohol test results, standing alone, to
provide the evidence of impairment or intoxication, the circuit
court holding requires additional evidence linking the test and
the offense. See Taylor, supra at 319. This holding, in
our judgment, undermines the clear statutory presumption.

Further, we recognize that the intent of the
‘implied consent statute’ is "‘to obtain the
best evidence of blood alcohol content at the time of the arrest
of a person reasonably believed to be driving while
intoxicated,’ and ultimately ‘to prevent intoxicated
persons from driving on the highways.’" Kozar, supraat 507, quoting Collins v Secretary of State, 384 Mich
656, 668; 187 NW2d 423 (1971). In order to prevent drinking and
driving, and thus "protect the innocent users of streets and
highways from the hazard of vehicles under the management of
those irresponsible persons who insist on driving while so
influenced," State v Ulrich, 17 Ohio App 3d 182,
185-86; 478 NE2d 812 (1984); see also People v Perlos, 436
Mich 305, 327; 462 NW2d 310 (1990), the Legislature enacted the
‘implied consent statute’ to enable the State to obtain
convictions without being unduly burdened in the proof of the
crime. For example, persons who operate vehicles on public
highways are "considered to have given consent to chemical
tests of his or her blood," rather than requiring the State
to first obtain actual consent or a search warrant. MCL
257.625c(1); MSA 9.2325(3)(1). Also, persons with a certain blood
alcohol level are "presumed" to be in violation of the
law. MCL 257.625a(9); MSA 9.2325(1)(9). Although the Legislature
could, of course, explicitly require that chemical tests be
administered within a specific amount of time, or that the
prosecutor set forth specific evidence as a prerequisite to
admission, it did not do so here. Absent clear statutory language
requiring a greater prosecutorial burden in admitting chemical
tests of blood alcohol, and considering the clear purpose of the
statute, we believe that a necessary inference is that the
Legislature did not authorize such a burden. A requirement that
the prosecution set forth preliminary evidence showing the
reliability of the test results where there was any delay in
testing would potentially frustrate the statute’s purpose by
imposing an additional burden upon the prosecutor in OUIL cases.

Second, we address the practical policy aspects
of the circuit court’s holding in this case. In this regard,
we agree fully with the trial court’s statement quoted in
Judge Smolenski’s dissenting opinion in People v Wager, 233
Mich App 1, 12; __ NW2d __ (1998), rev’d __ Mich __; __NW2d
__ (Docket No. 113712, issued 6/15/99), in which the majority of
a panel of this Court held that the prosecution must extrapolate
a blood alcohol test back to the time of the offense in order to
admit the test results: "To accept the premise being
postured here would mean that every time there’s a driving
incident or an accident there would have to be portable medical
teams, portable labs on the site, investigation, and that’s
just not the statutory scheme." Further, in a situation such
as the instant one, even carrying portable labs would not reduce
the delay because remote sites, including many in the sparsely
populated areas of the Upper Peninsula, may take significant time
to reach, and even then the defendant may not be present at the
site and may have to be found before a chemical test can be
performed. The extrapolation requirement is not an insignificant
burden. The Supreme Court of New Hampshire insightfully discussed
this burden as follows:

Extrapolation, however, requires
evidence that the State will rarely be able to acquire
because of the defendant’s constitutional right to
remain silent. Extrapolation requires evidence as to
when, and in what amounts, the defendant consumed the
alcohol prior to driving. Without this information, which
is wholly within the defendant’s knowledge in
the vast majority of cases, extrapolation of blood
alcohol content back to the time of driving becomes an
impossible task. The legislature could not have intended
to place such an impossible burden on the State.

Second, even if the State were able to
obtain evidence as to the exact time and the precise
amount of alcohol consumed by the defendant prior to his
driving, conclusive evidence of the blood alcohol content
at the time of driving could still not be offered to the
jury in the guise of a general rule because the rate of
absorption of alcohol varies considerably between
individuals. . . . The extrapolation evidence is further
complicated by the amount of food consumed by the
defendant at the time he consumes alcohol, which affects
the rate of absorption. [2 D. Nichols, Drinking/Driving
Litigation § 23:01 (1985).] This evidence is,
again, wholly within the knowledge of the defendant. The
legislature could not have intended to place such
impossible roadblocks in the way of the State in
prosecuting DWI cases. [Taylor, supra at 318
(emphasis added).]

We agree fully with the New Hampshire Supreme
Court. While we can imagine a more reliable method of testing
impaired or intoxicated driving, such as a motor vehicle that
itself takes continuous readings of blood alcohol levels of its
driver, this method is not yet, to say the least, required by the
Legislature. Until such time as we are able to rely upon such
technology, the State must prosecute drinking and driving
offenses with the best evidence that it can reasonably obtain.
The tests currently available cannot reflect a defendant’s
blood alcohol content at precisely the moment he was driving.
Given this fact, most, if not all, cases, would require some
additional evidence attempting to extrapolate the results to the
time of the offense if extrapolation were required as a condition
of admissibility. See Taylor, supra at 319. Thus, it would
be increasingly difficult for the State to convict defendants of
impaired or intoxicated driving where the evidence of the crime
is a blood alcohol test. As a result, some unknown number of OUIL
cases would be dismissed which would not have been dismissed
otherwise. The difficulty of establishing evidence of a nexus
between the offense and the test results would have the effect of
encouraging defendants to delay taking a blood alcohol test for
as long as possible while providing no information regarding
their actions near the time of the offense. A defendant’s
own actions should not be allowed to effect the suppression of
evidence against him.

In addition, we agree with the Supreme
Court’s statement in People v Sloan, 450 Mich 160,
197, n 11; 538 NW2d 380 (1995): "Because a person’s
blood-alcohol level dissipates over time, the danger to the
rights of the defendant that are being protected by such a rule
is not readily apparent." In the overwhelming majority of
cases, delay on the part of the police will only inure to the
defendant’s benefit. Although there are exceptions to this,[3] we believe that it would be more sensible to allow
defendants to set forth evidence at trial showing the
unreliability of the blood alcohol test taken in their particular
cases rather than to burden the system generally by assuming that
a delay is harmful to defendants in the absence of contrary
evidence from the prosecutor and thereafter suppressing the
results, as required by a foundational extrapolation standard.Certainly a defendant is always free to argue that a delay
undermined the test results at trial, but placing an affirmative
burden upon the State to establish a nexus between the test
results and the blood alcohol level at the time of the offense in
order to even admit the test results is too onerous a procedure,
in our judgment. We conclude that the statute at issue, as well
as practical state policy surrounding the rule against drinking
and driving, do not support a foundational extrapolation standard,which requires the prosecutor to offer evidence that the test
results accurately reflected a defendant’s blood alcohol
level at the time of the offense.

Third, we accordingly address the correct
standard to be applied as a prerequisite to the admission of
blood alcohol tests. Although the statute itself does not contain
any foundational requirement, all evidence continues to be
subject to all other applicable precedents and rules regarding
the admissibility of evidence. The prerequisite standard for
admissibility of blood alcohol tests applied by the circuit court
is more than a preliminary question regarding mere admissibility;
rather, it is a question regarding the impact of the evidence on
the ultimate question of guilt or innocence that should properly
be determined by the trier of fact. In our judgment, this is
inconsistent with the statute, as well as the policy against
drinking and driving.

The fact that there is a delay between the time
of the offense and the time of the testing does not affect the
reliability of the test results, which is shown by the proper
administration of properly working equipment by a qualified
operator. A delay does affect both the relevancy of the
test results and, if relevant, the weight that the results may be
accorded by the trier of fact in the ultimate guilt
determination. It appears that the circuit court wouldrequire
a prosecutor to put forth evidence regarding the weight of the
test results as a test of admissibility, when the standard for
admissibility of blood alcohol tests should be limited to their
relevance to a case. Pursuant to MRE 402, "[a]ll relevant
evidence is admissible, except as otherwise provided by the
Constitution of the United States, the Constitution of the State
of Michigan, these rules, or other rules adopted by the Supreme
Court." Relevant evidence is "evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence." MRE 401. Therefore,
we conclude that if the test result has any tendency to show that
a defendant was more probably or less probably impaired or
intoxicated when driving, and this probative value is not
substantially outweighed by the "danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence," MRE 403, the result
must be admitted into evidence. Certainly there will be extensive
time delays that may make a test irrelevant, although the exact
length of time will depend upon the circumstances of the
particular case and must be left to the discretion of the trial
court. Where there is "any tendency" that the test
results make the existence of a defendant’s state of
intoxication at the time of the offense more or less probable
than without the evidence, the test result must be admitted
unless they are properly excluded under MRE 403. At that point, a
defendant would then be free to argue the relative merit of the
evidence to the trier of fact. "Admissibility, in other
words, is a question entirely distinct from the due process
requirement of proof beyond a reasonable doubt." Miller v
State, 597 So 2d 767, 770 (Fla, 1991) (Kogan, J., specially
concurring).

Our analysis in this case is supported by the
Supreme Court of Florida, which held:

[T]he inability of the State to
"relate back" blood-alcohol evidence to the
time the defendant was driving a vehicle is a question of
credibility and weight-of-the-evidence, not of
admissibility, provided the test is conducted within a
reasonable time after the defendant is stopped.

What is "reasonable" in this
context will depend upon the facts of each case. As a
general rule, we believe a test is conducted at an
unreasonable time if the results of that test do not tend
to prove or disprove a material fact, or if the probative
value of the evidence is outweighed by its potential to
cause prejudice or confusion. [Miller, supra at
770.]

Similarly, where a Colorado statute permitted a
jury to infer that a defendant was under the influence of alcohol
if it found a certain amount of alcohol in his blood at the time
of the offense "or within a reasonable time
thereafter," the "reasonable time" limitation was
equated with a relevancy standard. People v Emery, 812 P2d
665, 667 (Colo App, 1990). The Colorado Court of Appeals stated:

[T]he delay in obtaining samples did
not affect the validity or reliability of the test, nor
did it affect the admissibility of the test results. The
"reasonable time" limitation is to ensure that
the request for the test is made close enough in time to
the alleged offense that the results will be relevant in
the determination of a defendant’s sobriety at the
time of the incident. And, while the timeliness of the
blood test may affect its accuracy, evidence which
relates to the accuracy of a chemical test affects the
weight to be accorded the evidence, rather than its
admissibility. [Id. (citations omitted).]

Even more importantly, our analysis on this
issue also comports with that of the Michigan Supreme Court in People
v Wager, __ Mich __; __NW2d __ (Docket No. 113712, issued
6/15/99), in which the Court reversed the Court of Appeals
decision, which had held that in order to fulfill the
foundational admissibility requirement that a blood alcohol test
was administered within a reasonable time, a prosecutor was
required to offer evidence that the blood test results accurately
reflected a defendant’s blood alcohol level at the time of
the offense. The Supreme Court stated:

Looking at the origin of the rule as
set forth in Kozar and the absence of a
dispositive ruling on point from this Court, we are
satisfied that no sound reason exists to engraft the
"reasonable time" element onto the clear
language of the statute. Thus, to the extent that Kozarand its progeny adopt a "reasonable time"
element, they are expressly overruled. [Id. at
slip op p 6-7.]

Thus, the Supreme Court held that, pursuant to
the clear statutory language, test results "are admissible .
. . and will be considered," MCL 257.625a(6)(b)(ii); MSA
9.2325(1)(6)(b)(ii), and the prosecutor is not required to
introduce expert testimony on this issue. Wager, supra at
slip op at 9. "To the extent that the passage of time
reduces the probative value of the test, the diminution goes to
weight, not admissibility, and is for the parties to argue before
the finder of fact." Id.

For the reasons stated above, we conclude that
the ‘implied consent statute’ and the policy regarding
drinking and driving support the conclusion that the only
prerequisite to admission of blood alcohol tests is a threshold
relevancy requirement, as codified in MRE 401, 402 and 403. Under
this standard for admissibility, we agree with the reasoning of
Judge Smolenski in his dissenting opinion in People v Wager, 233
Mich App 1, 13; __ NW2d __ (1998), reversed__ Mich __;
__NW2d __ (Docket No. 113712, issued 6/15/99), that
"[f]inding nothing inherently unreasonable" solely in
the delay between the time of the offense and the time of the
blood test, we are "unwilling to second-guess the trial
court’s considerable discretion." In the case before
us, the district court was aware that there was a delay between
the accident and the blood test of about two hours and
twenty-four minutes, and that defendant denied having ingested
any alcohol after the accident. This delay was not so long that
we can say that the test result did not have some tendency to
make the fact of defendant’s intoxication at the time of the
accident more or less probable. Therefore, the test result was
relevant to the case and the district court properly denied
defendant’s motion to suppress the test result. [4]Any further
discussion regarding the impact of the delay should take place at
trial, where it will properly influence the weight given to the
result by the trier of fact.

Reversed and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.

/s/ Stephen J. Markman
/s/ William C. Whitbeck
/s/ Peter D. O’Connell

FOOTNOTES:

[1]We note that the
blood test results were not included in the lower court record.
The actual results are not necessary for reaching a decision in
this case because the issue here is whether the delay was
reasonable. However, since there does not appear to be any
dispute regarding the results, we note as background information
that the test results indicated that defendant’s blood
alcohol level was .27.

[2]We note that
even where a New Hampshire statute stated that "a court may
admit evidence of the amount of alcohol in the defendant’s
blood at the time alleged, as shown by a test. . . .
Evidence that there was, at the time alleged, 10/100
percent or more by weight of alcohol in his blood is prima facie
evidence . . . ." NH Rev Stat Ann § 265:89 (Cum Supp
1988) (emphasis added), the New Hampshire Supreme Court held that
the language did not require the prosecutor to prove that the
defendant had a 0.10 or greater blood alcohol content at the
precise time he was driving because this result would be
"illogical." State v Taylor, 132 NH 314; 566 A2d
172, 174 (1989).

[4]The circuit
court in this case applied a two-part test that included the
reasonableness of the delay from the standpoint of the police
officers’ actions, and the reasonableness of the delay with
regard to the "probity of the test as to the condition of
the driver at the time of the offense." We conclude that the
good or bad faith of the police officers conducting a blood
alcohol test has no obvious part in determining the relevance of
such a test to a drinking and driving case. While the good or bad
faith of the police officers with regard to a delay may
conceivably be relevant to some other inquiry, there is no
allegation of bad faith on the part of the police officers in
this case. Thus, we decline to speculate about the possible
consequences if such an allegation were, in fact, demonstrated.